D.N.Sharma - (1.) This Second Appeal is by a plaintiff who was unsuccessful in both the courts below. Only two main questions are raised in the appeal. Firstly whether on the findings recorded, the plaintiff had failed to prove his readiness and willingness to perform his part of contract and secondly what value should be attached to the undelivered notices sent by the plaintiff prior to the suit? One more question has emerged due to the change of circumstances during the pendency of the appeal. It is as to the effect of the acquisition of the land in question on the relief sought.
(2.) It is undisputed that the plaintiff was the original owner of the land and on 3-7-1973 he had transferred the same to the defendant. Simultaneously the defendant admittedly had entered into an agreement for re-transferring the property to the plaintiff for a sum of Rs.15, 000.00 within two years. Prior to the suit the plaintiff sent notices by registered post on 22-3-74 and 6-5-1975 but both of them were returned undelivered with an endorsement of refusal. In the plaint it is averred that the plaintiff was always ready and willing to perform his part of the contract and despite being approached by the plaintiff on several occasions with requisite money the defendant avoided to execute the sale deed on one pretext or the other.
(3.) The suit was contested mainly on the ground that the plaintiff had no capacity to pay sale consideration and that the plaintiff had never approached him for executing the sale deed. On the contrary, the defendant pleaded that the plaintiff himself had expressed his inability to arrange the requisite amount when the defendant had asked him to get the sale deed executed. The defendant also pleaded that he had spent considerable amount over improvement of the land, by boring a well and installing an engine over it after the plaintiff had refused. He denied having ever received any notice and contended that time being the essence of contract the suit was not maintainable.;